PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, 1 S.J.
NORFOLK AND WESTERN RAILWAY COMPANY
v. Record No. 020834 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 2003
RAYMOND P. KEELING
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
In this case brought under the Federal Employers'
Liability Act, 45 U.S.C. §§ 51-60 (FELA), Norfolk and Western
Railway Company (N&W) appeals a judgment in favor of its
employee, Raymond P. Keeling, Jr., asserting that Keeling
failed to present evidence that N&W was negligent and that
Keeling's injury was foreseeable. N&W also argues that the
trial court improperly excluded certain expert testimony.
Based on our review of the record, we conclude that the issues
of negligence and foreseeability were properly submitted to
the jury and that the trial court did not abuse its discretion
in excluding the testimony of N&W's expert.
FACTS
Keeling was employed by N&W as an electrician. In his
position, Keeling had to wear a respirator at times and, under
federal regulations, was required to take pulmonary function
tests (PFTs).
1
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date
N&W contracted with T.K. Group, Inc., and Quality
Services, Inc., to administer PFTs to N&W's employees. N&W's
internal protocol provided that prior to administering a PFT
the blood pressure of employee will be monitored
and determined to be within the acceptable range
(lower than 200/115). If above this level, testing
will not be performed and the supervisor and
medical doctor will be advised.
Before administering a PFT to Keeling in August 1994, N&W's
agent, a technician employed through T.K. Group, Inc., and
Quality Services, Inc., measured Keeling's blood pressure.
That measurement showed that Keeling's blood pressure was
greater than 200/110. 2 After waiting five or ten minutes, the
technician again took Keeling's blood pressure, which then
measured 158/102. Based on this reading, the technician
proceeded to administer the test to Keeling.
The test required Keeling to breathe through a device
that measures the airflow generated by the patient's lungs.
The patient is instructed to inhale as deeply as possible and
then exhale that air as quickly as possible. The technician
administering the test felt Keeling's first test was
insufficient and told Keeling to "blow hard" into the device
again. When he repeated the test, Keeling started sweating
of his retirement on January 31, 2003.
2
The record does not indicate the exact measured reading
but established that Keeling's blood pressure was greater than
200/110.
2
and experiencing chest pain and dizziness. At that point, the
technician stopped further testing. After checking with his
superior, Keeling was driven home by a co-worker.
Keeling's symptoms continued at home, and his wife took
him to a hospital emergency room. The emergency room
physician determined that Keeling had a hole in his ear and
referred him to Dr. Kurt Chen, an otolaryngologist. Dr. Chen
performed surgery on Keeling's ear two days later.
Keeling's condition improved following his surgery and
rehabilitation, but in 1995, he lost his balance and fell.
Dr. Chen referred Keeling to Dr. Robert I. Kohut, another
otolaryngologist, who diagnosed Keeling's condition as
"recurrent perilymphatic fistula" and determined that Keeling
required another surgery on his eardrum. 3 Keeling experienced
some improvement after this second surgery but was never
released by a physician to return to his former employment.
Keeling filed an action against N&W under FELA, alleging
that N&W violated FELA because it negligently failed to
provide a safe workplace by, inter alia, not properly
determining whether he was physically fit to undergo or
3
A perilymphatic fistula is an opening between the inner
ear and middle ear allowing perilymph fluid to permeate the
middle ear from the inner ear.
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continue pulmonary function testing. 4 This negligence, Keeling
claimed, resulted in a perilymphatic fistula when he blew into
the testing mechanism. Following a five day trial, the jury
returned a verdict in Keeling's favor for $350,000. N&W
appeals from the judgment entered on the jury verdict.
DISCUSSION
1. Negligence and Foreseeability
We awarded N&W an appeal on three assignments of error.
In its first two assignments, N&W asserts it was entitled to a
judgment in its favor as a matter of law because Keeling
presented no evidence of negligence in the administration of
the PFT and no evidence that Keeling's injury was foreseeable.
The legal principles applicable to these two assignments
of error are well settled. Whether negligence has been
established in a FELA claim is a matter of federal law.
Norfolk S. Ry. v. Trimiew, 253 Va. 22, 24, 480 S.E.2d 104, 106
(1997). Under FELA, the railroad has a nondelegable duty to
exercise reasonable care in providing a safe work place for
its employees. Id. at 25, 480 S.E.2d at 106. The employer
breaches this duty if its negligence causes, even in the
slightest way, an injury to its employee. Reasonable
foreseeability of harm is an essential element of negligence
4
Keeling also named T.K. Group, Inc. and Quality Services
Inc. as defendants. Orders non-suiting T.K. Group and
4
under FELA. Id. at 24, 480 S.E.2d at 106. Both
foreseeability and negligence must be shown by more than a
scintilla of evidence, and these issues are normally issues
for the jury. Id. at 27, 480 S.E.2d at 108.
The standard of review applicable to the first two
assignments of error is also well established. The evidence
and all inferences fairly made from that evidence must be
considered in the light most favorable to Keeling. Austin v.
Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287 (1997).
Further, this Court will not set aside the trial court's
judgment unless it is plainly wrong or without evidence to
support it. Code § 8.01-680.
N&W asserts that the record "simply does not support"
Keeling's theory that the failure to excuse him from PFT
testing when he received the initial higher blood pressure
reading was negligent. N&W argues that Keeling was given the
PFT only after his blood pressure reading was 158/102 and that
there was no evidence to support the conclusion that
administering a PFT following such a blood pressure reading
was negligent. "The heart of" Keeling's allegation of
negligence, N&W argues, is that the technician, N&W's agent,
failed to follow N&W's internal protocol.
dismissing Quality Services were entered prior to trial.
5
The record does not support N&W's position. Rather, the
record contains expert testimony that administering the PFT
test following his initial blood pressure reading exposed
Keeling to a greater risk of injury. Dr. Kirk E. Hippensteel,
Keeling's expert in the field of pulmonology, testified that,
in his expert medical opinion, no patient should be asked to
perform a PFT following a blood pressure reading in excess of
200/110 or 200/115. Dr. Hippensteel explained that blood
pressure is dynamic and that performing a PFT would likely
cause a patient's blood pressure to increase. Such increase
in blood pressure would decrease the autoregulation of the
cardiovascular system and autoregulation of pressure in the
brain. He opined that administering the PFT following the
initial blood pressure reading in this case created the risk
that Keeling's blood pressure, even following a rest period,
would be as high or higher than the original blood pressure
reading and that the test should not have been given.
This evidence of negligence in administering the test
after receiving the initial higher blood pressure reading is
not related to an allegation that the negligence consisted of
a violation of N&W's internal protocol. Dr. Hippensteel's
opinion is an independent determination that the initial blood
pressure level itself, regardless of the relationship of that
level to the protocol, provided the basis to conclude that the
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PFT should not have been administered, regardless of
subsequent blood pressure levels.
We conclude that the record contains more than a
scintilla of evidence that N&W was negligent when its agents
administered a stressful PFT test to an employee with a blood
pressure reading in excess of 200/110 or 200/115. See
Trimiew, 253 Va. at 27-28, 480 S.E.2d at 108.
We also agree with the trial court that sufficient
evidence was produced to support a jury finding that injury
was foreseeable as a result of administering the PFT under an
elevated blood pressure level. An employee raising a FELA
claim does not have to show that the employer's negligence
would inevitably cause injury, had resulted in past injury, or
would cause a specific kind of injury. See Gallick v.
Baltimore & Ohio R.R., 372 U.S. 108, 120-21 (1963). N&W
produced testimony that the blood pressure screening was done
prior to administration of PFTs for general health purposes.
Nevertheless, under N&W's protocol, the administration of a
PFT was contingent upon an employee's blood pressure level.
Thus, the jury was entitled to conclude that N&W believed
there was a risk of harm associated with taking a PFT while
experiencing certain blood pressure levels.
Considering the evidence in a light most favorable to
Keeling, we conclude that Keeling presented more than a
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scintilla of evidence that N&W knew or should have known that
an injury was likely to occur if a PFT was given to an
employee with a blood pressure level in excess of 200/110 or
200/115. Accordingly, the trial court properly submitted the
issues of negligence and foreseeability to the jury and did
not err in refusing to set aside the jury verdict on those
issues.
2. Expert Testimony
N&W's final assignment of error relates to the testimony
of Dr. J. Wallace Grant, Ph.D. We begin by briefly reviewing
the testimony in question.
N&W offered Dr. Grant as an expert in biomechanical
engineering with a specialization in vestibular mechanics.
The trial court found that Dr. Grant was qualified to offer
opinion testimony in those areas. In his direct examination,
Dr. Grant was asked "what is it that causes one of these
fistulas to become symptomatic?" As part of the response to
this question, Dr. Grant stated that "[t]he creation of the
fistula is usually the result of an infection or something
that causes the tissue or the bone to deteriorate." Keeling
objected, asserting that the questions and answers went beyond
the area of biomechanical engineering because they addressed
the medical cause of the fistula, an area "reserved for the
medical profession."
8
Out of the presence of the jury, counsel for Keeling and
N&W presented arguments regarding the admissibility of this
testimony. Following a dialogue with the trial court as to
whether N&W planned to ask Dr. Grant questions involving
"cause," Dr. Grant was questioned further by N&W and Keeling.
This questioning was submitted by N&W as a proffer of Dr.
Grant's testimony. N&W's counsel summarized the testimony as
describing "the relationship between blood pressure and
cerebral spinal fluid as they interact in pressure within the
vestibular area . . ." which "merely explains the mechanics of
what goes about in the inner ear when there is a perilymphatic
fistula which allows the communication of pressure between an
inner ear and the middle ear."
Relying on Combs v. Norfolk and Western Railway Co., 256
Va. 490, 507 S.E.2d 355 (1998), the trial court concluded that
Dr. Grant's testimony about the relationship between arterial
blood pressure and perilymphatic fistula, was, in the court's
view, "the functional equivalent of Doctor Schneck testifying
to the relationship between various physical factors and the
rupture of a human disk [in Combs]."
Following this ruling, N&W told the trial court that it
intended to limit its questioning of Dr. Grant to "the
relationship between blood pressure and the pressure that you
see in the cerebral spinal fluid." The court proceeded to
9
examine Dr. Grant to determine whether the nature of his
testimony would be biomedical or biomechanical. Following
this exchange, the trial court again commented that the
testimony at issue was "biophysical as well as biomechanical"
and that N&W did not want to question Grant solely about
"pressures in the inner ear." The trial court concluded that,
under Combs, Grant could not "offer testimony in those areas."
In its final assignment of error, N&W complains that because
Dr. Grant's testimony did not address medical causation
issues, it was error to exclude the testimony on the basis
that Dr. Grant was not a medical doctor.
In considering questions of procedure and evidence,
including the admissibility of expert testimony, we apply
state law, Chesapeake v. Ohio Rwy. Co. v. Kelly, 241 U.S. 485,
491 (1916), and review the trial court's ruling to exclude
expert testimony for an abuse of discretion. John v. Im, 263
Va. 315, 320, 559 S.E.2d 694, 696 (2002).
In Combs, we held that only a medical doctor could give
expert testimony about the cause of a human physical injury.
256 Va. at 496, 507 S.E.2d at 358. We reiterated that rule in
Im, 263 Va. at 321, 559 S.E.2d at 697. The testimony given by
Dr. Grant in the presence of the jury – that fistulas were
generally caused by infections that caused bone or tissue to
deteriorate – clearly came within the prohibition recited in
10
Combs and Im. The trial court did not abuse its discretion in
excluding this testimony.
The testimony presented out of the presence of the jury
in N&W's subsequent proffer did not include questions as to
the cause of the fistula. However, we cannot say that the
trial court abused its discretion in disallowing this
testimony based on its conclusions that N&W did not intend to
limit its questions to pressure in the inner ear and that the
proffered testimony involved opinions based on both medical
and biomechanical matters.
Furthermore, as N&W predicted at trial and Keeling argues
here, other medical doctors presented by N&W testified
"essentially, about the same issues." The testimony that N&W
argues was improperly excluded was Dr. Grant's opinion that
cerebral spinal fluid pressure is independent of arterial
blood pressure and that a straining movement could increase
both cerebral spinal fluid pressure and venous pressure but
that there was no relationship between such a straining
movement and arterial blood pressure.
Dr. Paul R. Lambert and Dr. C. Edward Rose, medical
doctors testifying on behalf of N&W, stated that there was no
relationship between arterial blood pressure and cerebral
spinal fluid pressure. These doctors also testified that a
straining effort could increase cerebral spinal fluid pressure
11
and venous pressure but not arterial blood pressure. This
information was put before the jury, and, thus, Dr. Grant's
testimony as to these matters would have been cumulative.
For the above reasons, we will affirm the judgment of the
trial court.
Affirmed.
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